On May 19, 1995, we issued our opinion in this matter, Gora
v Ferndale, 210 Mich App 622; 533 NW2d 840 (1995). On April
29, 1996, our Supreme Court, in lieu of granting leave to appeal,
issued an order remanding this case for reconsideration in light
of 1995 PA 104 and for consideration of the issues raised but
not addressed in our original opinion. Gora v Ferndale
___ Mich ___; ___ NW2d ___ (1996). On remand, we considered defendant
City of Ferndale’s arguments that the circuit court erred by finding
unconstitutional certain portions of its ordinance regulating
massage parlors and practitioners (massagists). We affirm in
part and reverse in part.

Ferndale’s ordinance number 832, amended by ordinance 836, contained
numerous provisions regulating massage parlors and massagists.
Section 7-247(a) and (b) require that both massage parlors and
massagists have valid city permits to practice their trade in
Ferndale. Section 7-249 and 7-250 set forth the requirements
for obtaining such permits. In order to obtain a massage parlor
license, § 7-249(m) requires that the applicant show proof
of graduating from a "recognized school or other institution
of learning" which taught massage. Similarly, in order to
obtain a massagists permit, the applicant must show proof of graduation
from a recognized school or that they are currently enrolled in
a recognized school. Section 7-247(k) defines recognized school
or massage school as including "any school or educational
institution licensed to do business in the state in which it is
located, or any school recognized by…the American Massage and
Therapy Association, Inc., and which has for its purpose the teaching
of…massage."

Section 7-266 of the ordinance specifies several unlawful acts.
Section 7-266(a) prohibits massagists from treating persons of
the opposite sex except upon the signed order of a license physician,
chiropractor, or physical therapist. Massage parlors are required
to keep specific records of any such mixed-gender massages, and
such records are subject to inspection by police. Section 7-266(b)
prohibits any person in a massage establishment from touching
"a sexual or genital part of any other person." Section
7-266(b) provides "sexual or genital parts shall include
the genitals, pubic area, buttocks, anus, or perineum of any person,
or the vulva or breasts of a female." Section 7-266(c) similarly
prohibits any person in a massage establishment from "exposing
his or her sexual or genital parts…to any other person."
Section 7-266(d) makes it illegal for persons in massage establishments
"to fail to conceal with a fully opaque covering, the sexual
or genital parts of his or her body."

Section 7-265 of the ordinance allows the chief of police or
authorized inspectors from the city to inspect massage businesses
to determine compliance with the ordinance, and makes it illegal
to refuse access to the premises or otherwise hinder such an inspection.

Additionally, § 7-261 prohibits anyone less than eighteen
years old from being on the premises of a massage parlor, and
§ 7-255(b) requires that every patron of a massage parlor
provide proof of identity by showing a valid driver’s license
or similar identification.

The circuit court concluded that the educational requirements
of §§ 7-249(m) and 7-250(i) violated plaintiffs’ due
process rights because they constituted an unreasonable and undue
burden upon their right to practice their profession. The circuit
judge noted that the risk of potential harm from the non-therapeutic
massages practiced by plaintiffs was minimal, so the educational
standards were not necessary.

The circuit court found that the prohibition against mixed-gender
massage contained in § 7-266(a) violated constitutional rights
to privacy and association and that the blanket-type classification
by sex was prohibited by the equal protection clause of the Fourteenth
Amendment. The circuit judge found that the requirement that
a patron show identification did not violate privacy rights, but
that any record keeping requirements would violate privacy rights.

The circuit court found § 7-265 violated constitutional
rights to privacy and was unduly oppressive because it provided
for criminal prosecution for refusing to allow inspection and
did not limit inspections to business hours and other reasonable
times. The judge noted that § 7-265 did not clearly establish
that a massagist who conducts massages in private homes would
not be subject to the same warrantless search provisions. The
court found that a provision allowing an initial inspection to
ensure compliance upon issuance of a permit and reasonable warrantless
inspections during reasonable times and under reasonable conditions
could be permissible.

Finally, the circuit court concluded that § 7-266(b), (c),
and (d), prohibiting touching or exposure of sexual or genital
body parts, were void for vagueness because they encouraged arbitrary
enforcement. The court further found that the absence of a scienter
requirement created the possibility that innocent or inadvertent
acts would be punished, and that the language of the ordinance
was not sufficiently precise because it failed to give fair warning
of what type of exposure would run afoul of the law.

Following entry of the circuit court’s opinion, defendant moved
for a remand to correct the opinion because the final order indicated
that § 7-255(b) of the ordinance was unconstitutional. On
remand the circuit judge issued a nunc pro tunc order correcting
the prior error.

I.

Defendant argues that the circuit court erred by finding §§
7-249 and 7-250 of defendant’s ordinance unconstitutional. We
agree. The educational and licensing requirements of the ordinance
do not violate constitutional guarantees of due process of law.

The right to engage in business is subject to the state’s police
powers to enact laws in furtherance of the public health, safety,
welfare, and morals. Grocers Dairy Co v Dep’t of Agriculture,
377 Mich 71, 75; 178 NW2d 767 (1966). Statutes and ordinances
are presumed constitutional, and courts should construe them in
a constitutional manner. Detroit v Qualls, 434 Mich 340,
364; 454 NW2d 374 (1990); Ullery v Sobie, 196 Mich App
76, 79; 492 NW2d 739 (1992). The party challenging an ordinance
has the burden of proving it invalid. Ullery, at 79.

Due process guarantees under the Michigan constitution, Const
1963, art 1, § 17, provide no greater protection than that
guaranteed by the United States Constitution. Saxon v DSS,
191 Mich App 689, 698; 479 NW2d 361 (1991). Where an ordinance
is challenged on substantive due process grounds due to its interference
with economic or business activity, the challenger must establish
either 1, that no legitimate public purpose is served by the legislation,
or 2, that there is no rational relationship between the ordinance’s
provisions and a legitimate public purpose. Qualls, 434
Mich 365; Ullery, 196 Mich App 80; L & N R Co v
Epworth Assembly, 188 Mich App 25, 43-44; 448 NW2d 727 (1991).

A review of the pertinent provisions of defendant’s ordinance
shows that the ordinance was designed to serve a legitimate public
purpose, namely to discourage surreptitious prostitution at massage
parlors. This public purpose was related to the public health,
safety, welfare and morals. The licensing and education requirements
of §§ 7-249 and 7-250 were rationally related to this
public purpose because they ensured that only persons who possessed
a certain amount of training in myomassology could be licensed
as massagists in Ferndale. The ordinance requirements would have
the effect of insuring that only serious practitioners of massage
would be operating massage parlors or be employed as massagists,
thereby decreasing the likelihood that a massage establishment
would merely be a front for prostitution.

Where the legislative classification does not involve a suspect
classification or interference with a fundamental right, we use
the rational basis test, under which a statutory classification
is upheld where it is rationally related to a legitimate government
purpose. Doe, supra, 439 Mich 662.

Where the statutory scheme creates a classification based upon
suspect factors such as ethnicity or national origin, or impinges
upon the exercise of a fundamental right, we use the strict scrutiny
test. Under strict scrutiny, a statutory classification is upheld
only where the state demonstrates that its classification scheme
has been precisely tailored to serve a compelling government interest.Doe, 439 Mich 662.

Classification schemes based upon gender used the intermediate
or heightened scrutiny test. Civil Rights Dep’t v Waterford
Township, 425 Mich 173, 191; 387 NW2d 821 (1986). To pass
heightened scrutiny, the classification must: 1, serve an important
governmental purpose; and 2, be substantially related to achieving
that important government objective. Id. Under heightened
scrutiny, the state or municipality bears the burden of showing
that the interest is important and that the means is substantially
related to the desired end. 425 Mich 196. Our Supreme Court
noted "[f]acts and circumstances play a large part in assessing
the end-means relationship. While the [substantial] relationship
need not be perfect, it should be close." 425 Mich
at 202 (emphasis added).

Defendant’s § 7-266(a) is directed at an important public
purpose, mainly the prevention of prostitution at massage parlors.
Defendant’s brief does not explain how the means of prohibiting
mixed-gender massage is substantially related toward this end.
While prohibiting massage performed upon persons of the opposite
gender would certainly prevent any sort of heterosexual contact
between female masseuses and male customers, it would also cut
the available number of plaintiff’s prospective customers in half,
significantly affecting their business. Although defendant’s
goal is legitimate, the prohibition applied to accomplish that
goal is far too broad to be considered substantially related under
the heightened scrutiny test.

III.

Defendant argues that the circuit court erred by finding unconstitutional
§ 7-265 of its ordinance, which permitted warrantless searches
of the premises. We disagree. The circuit judge properly concluded
that § 7-265 is unconstitutional and invalid to the extent
that it authorizes inspections or searches without a warrant or
the equivalent.

The Fourth Amendment of the United States Constitution protects
commercial buildings from unreasonable searches and seizures.Marshall v Barlow’s Inc., 436 US 307, 311-312; 98 S Ct
1816; 56 L Ed 2d 305 (1978). In Marshall, the United States
Supreme Court concluded that statutes allowing the search of a
commercial building without a warrant or the equivalent violated
Fourth Amendment guarantees against illegal searches and seizures.
436 US 310, 325. However, statutes can allow inspections pursuant
to regulations and judicial processes which satisfied Fourth Amendment
requirements. Id. Additionally, certain businesses and
industries have such a history of government oversight that no
reasonable expectation of privacy can exist. By choosing to participate
in such pervasively or closely regulated businesses, the business
owner has chosen to voluntarily subject himself to all applicable
government regulations, including warrantless inspections. Id.
436 US 313; see also Tallman v DNR, 42l Mich 585, 604,
605; 365 NW2d 724 (1984). Such pervasively regulated businesses
include the liquor and firearms industries. United States
v Biswell, 406 US 311; 92 S Ct 1593; 32 L Ed 2d 87 (1972);Colonnade Catering Corp v United States, 397 US 72; 90
S Ct 774; 25 L Ed 2d 60 (1970). The pervasiveness and regularity
of an enforcement scheme, rather than its longevity, are the relevant
considerations to determine whether a business falls within this
exception. Tallman, at 607.

In Marshall, supra, the Supreme Court pointed out that
the closely regulated industry is the rare exception, rather than
the rule. 436 US 313. The massage parlor business does not have
a long history of regulation in Michigan and is not pervasively
or closely regulated at this time. Although the Occupational
Code at one time covered the regulation of massage establishments
and practitioners, no state-wide rules were ever promulgated regulating
commercial massage parlors or massages. The fact that plaintiffs
have opted to open massage parlors or practice massage does not
signify consent to subject themselves to searches or inspections
which do not comply with Fourth Amendment requirements.

IV.

Defendant argues that the circuit judge erred by concluding that
§§ 7-266(b), (c), and (d) were unconstitutionally vague.
We agree.

Statutory language which forbids an act in terms so vague that
a person of common intelligence must guess at its meaning violates
due process of law. People v Capriccioso, 207 Mich App
100, 102; 523 NW2d 846 (1994). Statutory language is unconstitutionally
vague under three circumstances: 1, where it is overbroad and
impinges on First Amendment freedom; 2, where it fails to provide
fair notice of the proscribed conduct; or 3, where it is so indefinite
as to confer unstructured and unlimited discretion upon the trier
of fact to determine whether an offense has been committed. People
v Hayes, 421 Mich 271, 283; 364 NW2d 635 (1984).

An ordinance must be interpreted in a constitutional manner if
possible. Qualls, supra, 434 Mich at 364. Defendant’s
§§ 7-266(b)-(d) are not unconstitutionally vague. The
prohibition against the exposure or touching of sexual or genital
areas does not impinge upon First Amendment freedoms. These provisions
clearly define a sexual or genital area and provide fair notice
of the proscribed conduct. For example, § 7-266(b) states
that it is "unlawful for any person, in a massage establishment…to
touch…the sexual or genital parts of any other person"
and defines sexual or genital parts as "the genitals, pubic
area, buttocks, anus, or perineum…or the vulva or breasts of
a female." Section 7-266 is not so indefinite as to give
a trier of fact unlimited discretion to determine whether a violation
took place. Nor is a scienter element necessary to make the proscribed
conduct criminal; a legislative body may define a crime without
regard to the presence of specific criminal intent. People
v McKee, 15 Mich App 382, 385; 166 NW2d 688 (1968).

For the above reasons, we reverse the circuit court’s findings
that §§ 7-249, 7-250, and 7-266(b)-(d) of Ferndale’s
ordinance are unconstitutional. We affirm the circuit court’s
finding that § 7-265 is unconstitutional and invalid to the
extent that it authorizes inspections or searches without a warrant
or the equivalent.